United States v. Sopon-Leon ( 2009 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4893
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ALEX SOPON-LEON, a/k/a Alex Lopez, a/k/a Jesus Lopez,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Frank D. Whitney,
District Judge. (3:07-cr-00223-FDW-1)
Submitted: May 6, 2009 Decided: June 12, 2009
Before NIEMEYER and MOTZ, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Claire J. Rauscher, Executive Director, Ann L. Hester, Peter
Adolf, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC.,
Charlotte, North Carolina, for Appellant. Gretchen C. F.
Shappert, United States Attorney, Charlotte, North Carolina; Amy
E. Ray, Assistant United States Attorney, Asheville, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Following a guilty plea, Alex Sopon-Leon was convicted
of illegally reentering and being found in the United States, in
violation of 8 U.S.C. § 1326 (2006). The district court
sentenced Sopon-Leon to a total of fifty-seven months’
imprisonment. Sopon-Leon appeals his sentence, contending that
the district court incorrectly calculated his guideline
sentencing range by adding two points to his criminal history
based on the timing of his offense, pursuant to U.S. Sentencing
Guidelines Manual § 4A1.1(d) (2007). Finding no error, we
affirm.
In sentencing a defendant, a district court must first
properly calculate the guideline range. Gall v. United States,
128 S. Ct. 586, 596 (2007). “In assessing a challenge to a
sentencing court’s application of the Guidelines, we review the
court’s factual findings for clear error and its legal
conclusions de novo.” United States v. Allen, 446 F.3d 522, 527
(4th Cir. 2006).
The Sentencing Guidelines provide that in calculating
the defendant’s criminal history category, “[a]dd 2 points if
the defendant committed the instant offense while under any
criminal justice sentence, including probation, parole,
supervised release, imprisonment, work release, or escape
status.” USSG § 4A1.1(d). Because Sopon-Leon’s offense was
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illegally reentering and being found in the United States, the
district court concluded USSG § 4A1.1(d) applied because he was
serving a state prison sentence when immigration authorities
found him.
Sopon-Leon concedes that he was serving a state
sentence when an Immigration and Customs Enforcement (ICE) agent
learned that he had illegally reentered the United States and
was thus “found” for purposes of 8 U.S.C. § 1326. See, e.g.,
United States v. Sosa-Carabantes, __ F.3d __ (4th Cir. Apr. 1,
2009) (No. 08-4109) (explaining that the defendant was found
when the ICE agent had knowledge of his illegal reentry). Under
these circumstances, the authorities are unanimous USSG
§ 4A1.1(d) requires assessment of two additional criminal
history points. United States v. Coeur, 196 F.3d 1344, 1346
(11th Cir. 1999); United States v. Santana-Castellano, 74 F.3d
593, 598 (5th Cir. 1996); see also Sosa-Carabantes, __ F.3d at
__ (noting whether or not USSG § 4A1.1(e)’s sentencing
enhancement applied depended on whether ICE found the defendant
before or after he was sentenced); United States v. Figuereo,
404 F.3d 537, 541 (1st Cir. 2005) (holding the district court
did not plainly err by applying USSG § 4A1.1(d) to a defendant
found in the United States while imprisoned).
Accordingly, we affirm the judgment of the district
court. We dispense with oral argument because the facts and
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legal contentions are adequately presented in the materials
before the court and argument would not aid the decisional
process.
AFFIRMED
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